Director of Public Prosecutions v Cutts

[2021] VCC 577

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01244

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES HARLEY CUTTS

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2021
DATE OF SENTENCE:	11 May 2021
CASE MAY BE CITED AS:	DPP v Cutts
MEDIUM NEUTRAL CITATION:	[2021] VCC 577

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited: Section 75A Crimes Act; s 30B Bail Act 1977

Cases Cited:  R v Mills [1998] 4 VR 235; R v Verdins [2007] VSCA 102

Sentence:364 days imprisonment

12 month Community Corrections Order 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Barrington	Office of Public Prosecutions
For the Accused	Mr J. McQuillan	David Barrese & Associates

HIS HONOUR:

1James Harley Cutts, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment.  You also pleaded guilty to one summary charge of committing an indictable offence on bail.  The maximum penalty for this offence is 3 months' imprisonment.

2You have admitted your prior convictions.  During your plea, I was told of other offending which does not appear on the criminal history sheet provided in Court.  I shall say something more about your other offending in the course of these sentencing remarks.

3The prosecution tendered the Summary of Prosecution Opening on Plea as Exhibit A.  A summary of your offending is as follows:

4On 27 November 2019 at 10:20 pm, your victim was sitting in the Alexandra Gardens near Boathouse Drive in Melbourne.  He was looking at his phone and listening to music with headphones.  You had been riding a bicycle and you approached him and asked for a cigarette.  He commenced to roll one for you.  Against his wishes, you looked in his bag and it appears you stole a pair of scissors.  He gave you the cigarette and you asked to borrow his phone to use Facebook messenger.  After checking Facebook messenger, you took the victim’s phone and went to ride off on your bike.  As the victim snatched back his phone, you dropped your bike and produced the pair of scissors that you had taken from his bag.  You threatened the victim with the scissors if he did not give you his phone.  You threw several punches, hitting the victim to the left side of his face and to his forehead.  You again snatched the phone, but the victim ultimately got it back from you.  During this, you repeatedly stated that you were going to stab the victim.  You rode off on your bike.  You had stolen some cologne, pens, the scissors, the victim’s wallet which contained a bank cards, transport and membership cards, and the victim’s driver licence.

5You were identified through your Facebook messenger account which was still open on the victim’s phone.  You were arrested on 29 November 2019.  When your room at home was searched, police found the cologne that you had stolen from the victim.

6Police conducted a Record of Interview.  You admitted interacting with the victim and stealing the cologne but denied threatening the victim with scissors, stealing his wallet or assaulting him.

7You were remanded in custody on 29 November 2019 and you have now spent 529 days (excluding today) on remand by way of pre-sentence detention for this offending.

8The maximum penalty of 25 years' imprisonment for the offence of armed robbery marks it as one of the most serious criminal offences on the criminal calendar.  Your counsel, Mr McQuillan, submitted that your offending was a less serious example of this crime than many that come before this court.  
Mr Barrington, for the Crown, agreed.  Nevertheless, as Mr Barrington submitted, you targeted a young man on his own at night.  Your offence must have been frightening for him; you brandished the scissors, you threatened to stab him, and you punched him to the face.

9Your victim had earlier tried to placate you - he gave you a cigarette and he let you use his phone.  You, however, exploited the vulnerability of his circumstances and the night-time environment.

10It is apparent, however, that the crime of armed robbery was not premeditated.  Your opportunity to commit the crime only arose when you stole the scissors from the victim’s bag; as it was the scissors with which you threatened the victim.  Mr McQuillan concedes that you probably had planned to steal the victim’s phone and other items.  Mr Barrington submits that I should find that you had planned to commit robbery.

11Despite your denials in the Record of Interview of committing an armed robbery, you subsequently told the psychologist and your counsel that you have little memory of the events.  Of course, this does not lessen your moral culpability for your offending.

12In the end, I am content to simply find that whilst you were likely planning to steal items from the victim, the offence of armed robbery was not premeditated or planned.

13I note also that you were on bail for other charges at the time of your offending.

14In this way, although it is a serious offence, I am satisfied that it is an example at the lower to mid-range of seriousness.

15Ordinarily, the dominant sentencing principles for the offence of armed robbery is general deterrence, specific deterrence, denunciation, and protection of the community.  There are other factors which I must consider and which I will outline in the course of these remarks.

16I turn now to your personal circumstances:

17You are 23 years of age, being born on 25 February 1998.  You have five older step-siblings. 

18Your parents separated when you were aged four.  You initially resided with your father. When you were aged seven, you and your father returned to live with your mother and your step-siblings.  When you were aged eight, your father was diagnosed with Leukemia.  You and your mother cared for your father, to whom you were very close. 

19For approximately one year, you and your father lived with your paternal grandparents before returning to reside with your mother. 

20Your father passed away when you were aged 18. 

21You completed school up to Year 10, through high school and TAFE equivalent. 

22You completed a pre-apprenticeship in bricklaying.  You worked for a bricklayer for a few months before you started having difficulties with your employer. 

23You commenced a course in excavating.  Your father passed away part-way through the course and you dropped out. 

24You recommenced work then as a roof tiler in around November or December 2016, however lost this job due to issues with your birth certificate. 

25Whilst on remand, you have been working as a laundry billet. 

26You commenced the use of cannabis at aged 14.  At aged 15, you were using cannabis on a daily basis. 

27You tried ice by the time you were 16.  By age 17, you were using that drug on a daily basis. 

28When your father passed away, you ceased using ice.  You commenced drinking alcohol heavily and you abused Valium. 

29After being released from your first time in custody, you initially did not drink alcohol and were working casually as a roof tiler.  At some point, you began to drink again, which you believe was a way of dealing with the grief from the loss of your father.

30You were drinking approximately 10 cans, or a bottle of bourbon, daily.  On some occasions, this was mixed with Xanax and Valium tablets.  You also used cannabis on occasions.

31After a period on remand for offending you were granted bail on 4 April 2019, and at the time you were placed on CISP bail.  The final progress report dated 16 August 2019 outlines that you were referred for an episode of alcohol and drug counselling, and for psychological and psychiatric assessment and support.  In addition, your mental health was monitored by your GP whilst you were on CISP.

32The final CISP report is relatively positive.  For the most part, you engaged and complied with the supports provided to you.

33However, after completing the CISP program in August 2019, you relapsed and began drinking alcohol to excess again, as well as using ice, GHB and abusing prescription medication.

34This offending was committed three months after you completed the CISP program.

35I note you are not currently partnered and have no children.  Your mother and your siblings remain supportive. 

36You are currently on remand at the Fulham Correctional Centre.  As I have said, you are working as a laundry billet.  You are medicated with antidepressants and you have completed courses on the use of ice and cannabis, and anger management.

37I was also provided with a negative urine screen dated 2 June 2020.

38You have a relevant prior criminal history.  You have had appearances in the Children’s Court in 2012 and 2015 for recklessly causing injury.  In 2018, you were placed on a CCO on a charge (amongst other things) of robbery.

39Significantly, and disturbingly, since 18 April 2017, you have spent 1009 out of the last 1484 days in custody.  As I stated, you have spent 529 days (excluding today) in custody for this offending alone.

40I was provided with the psychological report of Carla Ferrari, forensic psychologist, dated 31 March 2021.

41Ms Ferrari considers that you suffer from a general anxiety disorder and an undiagnosed attention deficit hyperactive disorder.  Ms Ferrari considers that you have managed these by self-medicating with alcohol and other drugs.  In turn, your extreme levels of chronic intoxication led you to enter a cycle of criminal offending, which in turn has caused you to spend a large amount of time in custody since you turned 19.

42After examining your offending, Ms Ferrari concludes that all of your offending has been substance induced since your father passed away.  
Ms Ferrari considers that you pose a moderate to high risk of reoffending.  Nevertheless, she finds the existence of several key pro-social circumstances.  First, you still have the support of your mother and your older siblings and the availability of a stable home in Cranbourne.  Second, you have worked relatively constantly (and I do not want to overstate that) such that you have reasonable work prospects based on your history.  More importantly,
Ms Ferrari concludes that you have no antisocial traits. Moreover, you have good insight into your substance abuse and your offending.  As such,
Ms Ferrari considers that your risk of reoffending will reduce with treatment.

43Ms Ferrari concludes that you are at risk of institutionalisation.  You have been in prison for all but 16 ½ months of the last four years and two months. This has occurred at a critical time in your transition from teen years to adulthood.

44Accordingly, the psychologist considers that you need further psychological and psychiatric intervention; monitored through the development of a comprehensive mental health plan.  This would allow you to be potentially medicated for your mental health issues, and especially allow exploration and treatment (if appropriate) for ADHD.

45From the foregoing, Mr McQuillan made the following submissions on your behalf:

46First, Mr McQuillan submitted that your plea of guilty, although not made at the earliest time, still has considerable utilitarian benefit, as it was made soon after Mr McQuillan was briefed and after you were provided with appropriate legal advice.  I accept that your plea has utilitarian benefit.

47Second, Mr McQuillan submitted that the circumstances of your offending on the charge of armed robbery were opportunistic.  I have already stated that I conclude that to be the case.

48Third, Mr McQuillan submits that you were relatively youthful at the time of your offending (being 21 years of age) and that you are still relatively youthful.  Mr McQuillan referred to R v Mills [1998] 4 VR 235 and the principles stated in that case. In truth, Mr Cutts, you are getting a little old for the strict principles of Mills to apply in your case.  Moreover, your previous offending and the time you have spent in custody means that you have already been exposed to adult offenders and the adult prison system for much of the last four years.  Nevertheless, I am prepared to give you some latitude in this respect.

49Mr McQuillan submits that the fifth principle in the case of Verdins should be applied in your circumstances to mitigate the sentence I impose upon you.  In this respect, Mr McQuillan refers to the findings of Ms Ferrari who concluded that a prison sentence will weigh more heavily on you than on a person in normal health, because your ADHD can trigger mood fluctuation, depression and anxiety and within the volatility of the prison system, can trigger impulsive and disproportionate responses which exacerbate your symptom profile and the risk of decompensation.

50Mr Barrington of counsel made thoughtful and concise submissions in reply on behalf of the Crown.  It is significant that Mr Barrington submitted that I should give weight to the fifth limb of Verdins in my sentencing consideration.  I intend to do so.

51Finally, Mr McQuillan submitted that I must have regard to the principle of totality.  In essence, Mr McQuillan submitted that the time you have spent in custody for this offending (that is some 17 ½ months) ought not be seen in isolation, but must be seen in the whole context of the time you have spent in custody in the last four years and two months.  Furthermore, Mr McQuillan was at pains to remind me that this period of over 1000 days in custody, out of the last 1484 days, has been spent at a formative time in your life.

52For this reason, Mr McQuillan submitted that the appropriate sentence in your case is the imposition of a combination sentence of imprisonment with a Community Corrections Order.  Significantly again, Mr Barrington agreed.

53You were assessed for a CCO this morning.  The CCO assessment report assesses you of being of a high risk of reoffending according to the level of service risk assessment tool.  Nevertheless, the Office of Corrections assesses you as suitable for a Community Corrections Order and they recommend the following conditions.

54Drug, alcohol, mental health testing, assessment and treatment.  Programs to reduce offending and supervision.  The Office of Corrections also recommends judicial monitoring.  However, due to leave that I am taking and a continuous period of circuits it is not possible for me to effectively judicially monitor you, so I am going to leave that to the Office of Corrections.

55You reported to the Office of Corrections who noted your previous involvement in CCOs, and that your previous order from 2018 to 2020 was contravened by further offending.  You told the Office of Corrections quite candidly that you offended again when you relapsed back into drug and alcohol use at the time of this offending, but the Office of Corrections takes some heart from the fact that you presented as willing and able to comply with the CCO, you could identify no problems with doing so and you reported a stable residential address.

56My only concern, Mr Cutts, is that it was from that address, your home address, that you committed the last offences. It is pretty clear that at your age now, it is not that your mum and your siblings are going to be able to control your imposed curfews on you. You are now at a time in your life where you have to take responsibility for your own actions.  What I do take comfort from is that you have a pretty solid base of support, both in having a solid home that you can go to every night and in having the support of your mum and your siblings.

57There was also a mental health assessment undertaken by the Mental Health Advice and Response Service.  The Mental Health Advice and Response Service relied heavily on the report of Carla Ferrari of 31 March 2021, and the recommendation that you be referred to a psychiatrist and a psychologist for treatment of your ADHD and management of your mental health issues, your substance issues and control of your mood.

58Ultimately the Forensicare clinician who assessed you considers that you would benefit from a mental health component being mandated into your CCO, as well as the recommendations made by Ms Ferrari that you attend a psychiatrist and a psychologist, that you undertake further assessment and there be a consideration of treatment options regarding the potential ADHD diagnosis.

59In the end, the clinician answered the following questions.  First, does
Mr Cutts have mental health concerns?  The answer is yes.  Second, does the person require ongoing mental health care to be made a requirement of a CCO with their mental health wellbeing or to help prevent offending?  The answer to that was yes.

60Is such care available?  Yes, at the Casey Medical Centre.  The clinician considered that there were no barriers to your being managed by CCS due to mental health needs and that you do not require immediate or emergency mental health care follow up.

61In all of the circumstances, taking into account the matters raised by
Mr McQuillan, I find that the plea of guilty is of utilitarian benefit and ought to mitigate the sentence I impose upon you.  I find that there is still an element of youth which should be given some consideration in sentencing. Although I did say that clearly you have been mixing with adults for a long time in the prison system and you have spent a long time in the prison system itself, it does not mean that you are necessarily fully cognitively developed and mature. There can still be aspects of immaturity brought about by your confinement and your isolation.

62I do find that your ADHD is likely to make your time in prison more difficult or weigh more heavily upon you than on others, and I do give great weight to the fact that you have spent 529 days on remand for this offending within the context of 1008 days in custody in the last four years and two months, with only 16 months not in custody.

63So with all of that, Mr Cutts, I want to offer you the opportunity for release on a CCO.  Let me just start generally.  I have got to ask you a number of questions and I have got to put a number of matters to you, but, Mr Cutts, are you willing to have another shot at a CCO?

64OFFENDER:  (Indistinct words.)

65HIS HONOUR:  Sorry, it is a bad link but if that is a yes just raise your hand.  Mr Cutts, I am going to read the general conditions of a CCO to you.  I know you are familiar with them, but I have to read them to you and satisfy myself that you understand them and that you are willing to undertake the CCO knowing what those conditions are.

66So at the end of it I will get you to nod and raise your hand if you understand the conditions and you are willing to undertake them.  So the general conditions are that you must not commit, whether inside or outside Victoria during the period of the order, an offence punishable by imprisonment, even if imprisonment is not imposed for the offending.

67Second, you must comply with all the obligations or requirements prescribed by the regulations to enable the Office of Corrections to carry out its work.  So you have got to comply with the obligations and requirements that the Office of Corrections impose upon you.

68Third, you must report to and receive visits from the Office of Corrections during the period of the order.  Next, you must report to the Office of Corrections which is going to be by phone.  You are going to have to report to the Cranbourne Community Corrections Services by 4 pm on 13 May.

69Today is 11 May, and I will make it clear to you now, after today you will be released, so you must comply with that, you must ring in and make that initial contact.  You must notify the Office of Corrections of any change of address or employment within two clear working days after making the change.

70So if you leave the Claremont Avenue address you have got to notify them.  If you get a job you have got to notify them.  You must not leave Victoria except with the permission either generally or specifically of the Office of Corrections.

71You must comply with any direction given to you by the Office of Corrections, whether it is orally or in writing, which is given to ensure that you comply with the order.  Mr Cutts, do you understand the general conditions of the order?

72OFFENDER:  Yes.

73HIS HONOUR:  Yes, good, and you are willing to go ahead with the order?

74OFFENDER:  Yes.

75HIS HONOUR:  I am going to read the next part to you and these are the specific conditions which I intend to impose.  The first is that I am going to make the order for a period of 12 months. 

76The second is that you are going to be under the supervision of the Office of Corrections for that period of time, so you must submit to supervision and when they say, 'Come along or ring in', you must do so.

77You must undergo treatment and assessment for drug use or dependency as directed by the regional manager. You must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed.  You understand that.  You must undergo any mental health assessment and treatment which may include in-patient treatment as directed by the regional manager.  Do you understand that?

78By that I am particularly hoping that they pick up that you need a mental health plan put in place with your GP at the Casey Medical Centre.

79OFFENDER:  (Indistinct words.)

80HIS HONOUR:  Can you understand that, Mr McQuillan?

81MR McQUILLAN:  No, I can't, Your Honour.

82OFFENDER:  (Indistinct words.)

83HIS HONOUR:  So you will go to Casey Medical Centre and see your GP there, yes, and then you must participate in programs or courses that address factors relating to your offending behaviour as directed by the regional manager.

84Mr Cutts, do you understand the specific conditions that I intend to impose, and do you agree to the order?

85OFFENDER:  Yes, I do.

86HIS HONOUR:  I must tell you this, and you know this already; you can breach the order in two ways.  The first is you can breach it by not complying with the conditions that I have just imposed or breaching the general conditions, or you can breach it by further offending.

87You know that if you come back before me the options available to me are pretty limited.  Your priors are mounting up, you have done a lot of gaol time and it is likely that you would face further gaol time.  I want to make it clear that the Office of Corrections says that you are a high risk of reoffending.

88I want to give you this opportunity because I want you to get out of gaol and start experiencing normal life again, because if you do not then you will end up wanting to go back to gaol.  You will become what Ms Ferrari has called institutionalised, but I want you to come out into the community and I want you to stay off drugs, and I want you to get that mental health assessment and treatment.

89I want you to stay off the booze, stay off the grog.  So you know the risks yourself.  They have been outlined to you as high.  Knowing what the consequences are I cannot put it any more plainly than I have.  Are you still willing to consent to the order, Mr Cutts?

90OFFENDER:  Yes, 100 per cent.

91HIS HONOUR:  One hundred per cent?  The order will be that on the charge of armed robbery you are convicted and sentenced to a period of 364 days' imprisonment.  Let me just pause there.  The reason I do that is you can only get a combination sentence of it is a period of less than 12 months in combination.

92On Charge 1 you are convicted and sentenced to 364 days' imprisonment.  On Summary Charge 3 you are convicted and sentenced to one month's imprisonment.  I direct the sentence imposed on Summary Charge 3 be served concurrently on the sentence imposed on Charge 1.

93I direct that all sentences imposed in this case be served concurrently.  The total effective sentence is therefore a sentence of 364 days' imprisonment.  I further declare that the period the prisoner has been in custody in respect of these offences is 529 days (not including today), so the period of imprisonment has already been served.

94That means, Mr Cutts, that you are eligible for release.  In addition on Charge 1 and Summary Charge 3 you are ordered to serve a community corrections order for a period of 12 months.  The order commences today and ends on 10 May 2022.

95You must attend at the Cranbourne Community Corrections Centre by 13 May 2021 at 4 pm.  In addition to the general terms you are to submit to supervision for a period of 12 months; you are to submit to drug assessment and treatment; you are to submit for alcohol assessment and treatment; you are to submit for mental health assessment and treatment; and you must participate in programs or courses that address factors relating to your offending behaviour as directed by the regional manager.

96I am not sure how we go about getting you to sign the order, but can I have your verbal consent?  Before I actually sign any order myself, Ms Johnston, are you satisfied with the orders that I propose to make?

97MS JOHNSTON:  Yes, Your Honour, I am satisfied.  I do just have one matter to raise with respect of a disposal order, Your Honour. It has just come to my attention that a draft order has not been supplied by the court, but it would be just for the cologne that was in respect of the search warrant of Mr Cutts' property, and that was subsequently located. It is a bottle of cologne, negligible value.

98HIS HONOUR:  If the bottle of cologne needs to be forfeited and/or destroyed then I will make any order that needs to be made in chambers whenever it is brought before me.

99MS JOHNSTON:  Thank you, Your Honour, as the court pleases.  I will certainly forward a copy of the draft order.

100HIS HONOUR:  Thanks, Ms Johnston.  Is there anything further from your perspective that I need to do?

101MS JOHNSTON:  Nothing further, thank you, as the court pleases.

102HIS HONOUR:  Thank you for your attendance today.  Mr McQuillan, thank you for your attendance today.  Is there anything else from your perspective that I need to do?

103MR McQUILLAN:  No, Your Honour, thank you, as Your Honour pleases.

104HIS HONOUR:  I will stand down and make the orders.

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